Supreme Court of Missouri
en banc

In re:
New and Revised MAI-CIVIL Instructions, Notes on Use, and Committee Comments



E1.00 EARLY CASE SUMMARY – GENERAL COMMENT
(Committee Comment – New)

E1.01 EARLY CASE SUMMARY
(Instruction – New)
(Notes on Use – New)
(Committee Comment – New)

MAI 18.00 VERDICT DIRECTING – AGENCY
(Chapter Title – Revision)

MAI 18.01 VERDICT DIRECTING MODIFICATION REQUIRED
(Instruction – Revision)

MAI 24.06 DAMAGES – DEATH OF EMPLOYEE
(Committee Comment – Revision)

MAI 24.07 DAMAGES – INJURY TO EMPLOYEE
(Committee Comment – Revision)
1. New and revised MAI-CIVIL Instructions, Notes on Use, and Committee Comments as listed above, having been prepared by the Committee on Jury Instructions - Civil and reviewed by the Court, are hereby adopted and approved.

2. The Instructions, Notes on Use, and Committee Comments as set forth in the specific exhibits attached hereto must be used on and after July 1, 2017, and may be used prior thereto; any such use shall not be presumed to be error.

3. It is further ordered that this order and the specific exhibits attached hereto shall be published in the South Western Reporter and the Journal of The Missouri Bar.

Day – to – Day

___________________________
PATRICIA BRECKENRIDGE
Chief Justice

E1.00 [2017 New] EARLY CASE SUMMARY — GENERAL COMMENT



A. Research has demonstrated that early explanation to members of a jury panel regarding the nature of a case will enhance juror understanding of the case and their roles in achieving justice. Therefore, the Committee believes that early case summaries will help jurors perform their roles in the administration of justice in a particular case. The Committee further believes that a format for summarizing cases before jury selection will assist the court and counsel in achieving this goal.

B. An early case summary by the court is not mandatory — but is discretionary. Since cases vary, the format contained at E1.01 must be flexible to accommodate those variations. The guiding principles for creation of an early case summary are the same found in Rule 70.02(b) — simple, brief, impartial, free from argument, and without evidentiary detail. While an early case summary is not an instruction in the technical sense, the Committee believes that "boilerplate" instructions — such as the applicable burden of proof and definition of negligence — should be used in an early case summary.

C. An early case summary should be given before jury selection. The Committee believes that this will assist the jury in understanding the voir dire process in the context of a particular case, and will assist the jury in understanding why certain questions are being asked by the attorneys.

D. An early case summary is not intended to replace or shorten the voir dire process, but it is a supplement to voir dire.

E. Early case summaries are not intended to describe all theories or elements. They are intended to describe the basic nature of the case. As such, where a standard legal definition and burden of proof will be of assistance to the court, counsel, or the jurors, they should be included under the proper circumstances. This does not mean that all potential legal definitions or "boilerplate" instructions must be given. It also does not mean that error occurs in the event that certain definitions are included, while others are not. Technical engineering, scientific, or medical definitions should not be included in an early case summary. Such definitions are properly the subject of expert testimony, and should not be given as part of an early case summary, or as instructions at the end of the case.

F. Formulation of an early case summary should involve the attorneys and the judge. The trial court may, by local rule, or by order in individual cases, invite the attorneys to submit proposed early case summaries. Of course, if the parties can agree on an early case summary, that would be optimal. In the final analysis, the trial judge has the right and discretion to determine whether an early case summary is given, and the substance of that early case summary.

G. Because an early case summary is not an instruction, Rule 70.03 would not apply. However, in order to preserve any perceived error in an early case summary, general rules of trial practice and appellate practice would apply, and objections should be made at the earliest opportunity in order to give the trial judge opportunity to correct any such error. Furthermore, because an early case summary may incorporate certain "boilerplate" instructions, such as burden of proof and/or definition of negligence, care must be taken to follow Rule 70.03 with respect to those actual instructions.

H. Because the format of E1.01 is intended to accommodate all civil cases, it is also intended to accommodate not-in-MAI theories. Again, it is critical in this situation to follow the directives of the guiding principles in Rule 70.02(b).

I. This Committee has previously recommended that each juror be provided with a copy of the final instructions. The Court may consider whether a written copy of an early case summary be given to each juror, possibly as part of a juror notebook, which may also contain MAI 2.00(A) and any admonitions given by the court which may be derived from MAI 2.00(B). See Comment F to MAI 2.01.

E1.01 [2017 New] Early Case Summary
(1) I would like to explain why we are here today. This is a civil case. A civil trial is different from a criminal trial where the defendant is charged with a crime and could go to jail. A civil trial involves a disagreement between parties where the claims have been brought here to be resolved.

(2) At this time, I will give you a brief description of the case you will hear and the meaning of some important legal terms. This is to help you understand the nature of this case and assist you in evaluating the evidence.

(3) The plaintiff is the party who filed this case. Let me introduce the plaintiff to you (here introduce the plaintiff and/or plaintiff’s representative).1

(4) The defendant is the party against whom the case has been filed. Let me introduce the defendant to you (here introduce the defendant and/or defendant’s representative). 1

(5) This is a case involving [insert a brief description of the nature of the case].2

(6) The plaintiff claims that [insert the basis of the claim]3, that plaintiff was damaged [or injured], and should be compensated.4

(7) The defendant disputes the claims of plaintiff [and further claims that (insert the basis of the claim)5, (that defendant was damaged [or injured], and should be compensated).]6

(8) [The plaintiff disputes the claims of defendant] 6, 7

(9) [Insert the appropriate definition of negligence, if applicable] 8

(10) The Burden of Proof is as follows:
[Insert Burden of Proof]9

(11) [Where more than one party is claimed to be negligent and at fault, you, the jury, will decide if any party is at fault and assess percentages of fault. If appropriate, you will also award damages.]10

(12) Your verdict must be based on the final instructions given to you after all the evidence. Justice requires that you not make up your mind about the case until all the evidence has been seen and heard and all of you enter the jury room for deliberation of your verdict.
1. If there are multiple parties, make appropriate grammatical changes throughout.

2. The following are appropriate examples of such a description: "motor vehicle collision"; "medical care"; "alleged breach of contract"; "alleged defective product", etc.

3. The following are appropriate examples of such a description: "defendant was negligent"; "defendant breached a contract"; "defendant's product was defective".

4. If plaintiff also claims punitive damages then the following may be added to the description of plaintiff's claims:

Plaintiff also claims that defendant should be responsible for punitive damages to punish [or deter] the defendant. I will determine whether the evidence is sufficient for you to consider an award of punitive damages in addition to damages to compensate plaintiff.

5. Defendant may not only dispute plaintiff's claims, but may also make claims against the plaintiff such as comparative fault, a counterclaim for damages, or a complete affirmative defense such as a release. Use this paragraph to simply describe such a claim by the defendant. Appropriate examples of such a description are: "plaintiff was negligent"; "plaintiff breached a contract"; "plaintiff released plaintiff's claim in writing", etc.

6. This phrase is appropriate if defendant makes a counterclaim for damages.

7. If there are additional claims (such as cross-claims or third party claims), insert a simple paragraph(s) here. Re-number the remaining paragraphs as necessary.

8. In the event other definitions are appropriate, they may be included.

9. Although MAI 3.01 is often the appropriate burden of proof, some cases use an alternative burden of proof.

10. In a comparative fault case, Paragraph 11 may be used.
The numbers identifying each paragraph are provided as a guide for the court and counsel for discussion and ease of formulation, but the numbers should not be read to the jury.

18.00 [2017 Revision] Verdict Directing – Agency
18.01 [2017 Revision] Verdict Directing Modification Required
Where defendant master or principal is being sued and has denied agency of the alleged servant or agent, paragraph First in the verdict directing instruction shall be in the following form:

First, the driver Jones was operating the (defendant's) motor vehicle within the scope and course of [employment by] [agency for]1 (defendant's name) [at the time of the collision].2

The remaining paragraphs of the verdict directing instruction will then be renumbered. The name of the servant or some other identification will be substituted for the word “defendant” in the remainder of the instruction. Thus if Verdict Directing Instruction 17.01 were to include the issue of agency it would read as follows:
Your verdict must be for plaintiff if you believe:

First, the driver Jones was operating the Ajax Company motor vehicle within the scope and course of employment by Ajax [at the time of the collision],1 and

Second, Jones violated the traffic signal, and

Third, Jones was thereby negligent, and

Fourth, as a direct result of such negligence plaintiff sustained damage.

Where the master and servant are both joined as parties and agency is in issue, the verdict directing instruction against the servant will be a typical verdict directing instruction such as MAI 17.01. Since the verdict directing instruction contains those elements relevant to the liability of the servant, the only remaining issue relating to the master will be the agency issue. Under these circumstances it is not necessary to repeat the elements relating to the servant's negligence in the verdict directing instruction against the master. Thus, the verdict directing instruction against the master would read as follows:

In your verdict you must find defendant Ajax responsible for any negligence of defendant Jones if you believe driver Jones was operating the Ajax Company motor vehicle within the scope and course of employment by Ajax.

In preparing the verdict form where the master's liability is submitted only on the servant's conduct, the servant is also joined, and agency is in issue, MAI 36.01 should be modified by adding the following:

Note: Complete the following paragraph by writing the word(s) required by your verdict.

On the claim of plaintiff for personal injury against defendant (name of master),
we, the undersigned jurors, _______________ find (name of master) responsible for any
(“do” or “do not”)
negligence of (name of servant).
In a case where both the master and servant are joined and agency is not in issue, modifications should be made to the verdict directing instruction and the verdict form. See, for example, Note on Use No. 1 to MAI 17.01, which provides the following illustration:

Your verdict must be for plaintiff [against defendant John Jones and defendant Ace Trucking Lines] if you believe: . . .

Similarly, in the verdict form, the introductory language should be changed to state:

On the claim of plaintiff (state the name) for personal injuries against [defendant
(state the name of servant) and defendant (state the name of master)], we, the undersigned jurors, find in favor of:
________________________________________________________________________
(Plaintiff (state the name)) or (Defendant (state the name of servant) and Defendant (state the name of master))

24.06 [2012 Revision] Damages—Death of Employee

B. The submission of comparative fault in an F.E.L.A. case differs from the method in Chapter 37.00 for use in cases based on Missouri law. F.E.L.A. cases are governed by federal law. Under 45 U.S.C.A. §53, the jury diminishes damages in proportion to the employee's negligence. Under Chapter 37.00, the jury determines total damages and plaintiff's percentage of fault but the judge makes the actual computation diminishing total damages to the amount recoverable by plaintiff. If the parties agree, the case may be submitted in accordance with the principles described in Chapter 37.00, as is done in other jurisdictions.
24.07 [2012 Revision] Damages—Injury to Employee
B. The submission of comparative fault in an F.E.L.A. case differs from the method in Chapter 37.00 for use in cases based on Missouri law. F.E.L.A. cases are governed by federal law. Under 45 U.S.C. §53, the jury diminishes damages in proportion to the employee's negligence. Under Chapter 37.00, the jury determines total damages and plaintiff's percentage of fault but the judge makes the actual computation diminishing total damages to the amount recoverable by plaintiff. If the parties agree, the case may be submitted in accordance with the principles described in Chapter 37.00, as is done in other jurisdictions.